Attorneys can screw up, just like anyone else. Sometimes it’s understandable, and sometimes it is absolutely inexcusable. Fortunately, you do have options in this situation—in fact, you can even recover compensation.
If you seek compensation, however, you might need to hire another lawyer. Obviously, your former lawyer is not going to help you file a lawsuit against them.
You Have the Right To File a Legal Malpractice Claim
You’ve probably heard of medical malpractice. But have you heard of legal malpractice? It’s true that attorneys don’t like to talk about legal malpractice very much, and for reasons you can probably guess.
You do have rights, however, if your attorney screws up your case badly enough. Filing a legal malpractice claim is not your only option, but it is likely to be your best one.
The Structure of a Legal Malpractice Claim
Legal malpractice claims, at least those based on negligence (almost all of them), are structured like other negligence claims, with four main elements you have to prove to win.
Duty of Care
In a legal malpractice claim, a lawyer’s duty of care arises from the formation of a lawyer-client relationship.
Breach of Duty
In handling your case, your attorney must have exercised the skill, care, and diligence that are commonly exercised by other attorneys within the same field of law. If they didn’t, then they breached their duty of care to you. This is legal negligence.
Damages
You prove damages by showing how much you lost in the case for which the defendant lawyer represented you. Suppose, for example, the judge threw out your complaint over a motorcycle accident injury because your lawyer missed the statute of limitations deadline to file a lawsuit.
You must prove how much you would have won had your claim succeeded. That can be a tall order.
Causation
To prove causation in a legal malpractice claim, you must prove that you would have won the underlying case if not for lawyer incompetence. In other words, your lawyer’s incompetence is what caused you to lose the case.
That means you have to win two cases in one–to win your malpractice case, you must prove that you would have won the original case as well. This is a unique challenge.
Common Examples of Legal Malpractice
Following are some common examples of legal malpractice claims. Many other claims are possible.
- Missed deadlines. The statute of limitations deadline to file a lawsuit is the most important deadline, because missing it can destroy your claim. Most cases also involve other deadlines.
- Inadequate preparation or knowledge. In other words, your lawyer was lazy or didn’t know what they were doing. This can be a difficult claim to win.
- Failure to follow your instructions. It can be difficult, however, to prove the content of your instructions unless you put them into writing.
- Failure to obtain your consent: Your lawyer might have accepted a settlement without your consent, for example.
- Poor communication: It is difficult to win on this alone unless your lawyer completely “stonewalled” you at a critical time.
- Conflict of interest: Your lawyer was representing the opposing party on another matter, for example. This is very serious.
- Improper withdrawal from representation: A lawyer can normally withdraw from representation at any time. There are certain circumstances when withdrawal is inappropriate, however.
- Errors in document preparation. This is relatively easy to demonstrate.
- Failure to advise on alternative dispute resolution. This complaint may or may not be enough to win a legal malpractice claim.
- Inadequate discovery or investigation. This can be enough to win your claim if it causes you to lose the underlying case. It can be difficult to prove, however, except in the most serious instances.
- Failure to advise of the consequences of a settlement. If you accept punitive damages, for example, you could get hit with a large and unexpected IRS tax bill.
- Misuse of client funds. This misconduct can get your lawyer thrown in jail if it’s serious enough.
- Breach of the lawyer’s confidentiality obligations. With just a few exceptions, your lawyer must keep secret anything related to your representation, at least unless you consent to the disclosure. This obligation includes anything that is protected by attorney-client privilege and more.
You must prove your claim on a “preponderance of the evidence” (more likely than not) basis.
Compensation You Can Get Through a Legal Malpractice Claim
You can seek the following compensation for legal malpractice:
- The return of any money you paid the lawyer. Of course, in a personal injury case, you probably paid nothing upfront. The return of all your money is not automatic, even in the event of legal malpractice. It all depends on the circumstances.
- Any additional amount you lost by losing the underlying case because of legal malpractice.
- The money you spend pursuing your legal malpractice claim against the attorney.
- Punitive damages.
Courts usually do not award punitive damages even if the plaintiff is otherwise victorious in their lawsuit. It is also difficult to win non-economic damages such as emotional distress.
You Can Negotiate With the Attorney
Your former lawyer will probably prefer to negotiate your claim to preserve their public reputation. For reasons of convenience, this is probably your best option as well.
Do keep in mind, however, that your former lawyer is probably a professional at negotiations. Unless you are a professional negotiator too, and you know the relevant law backwards and forwards, the negotiation will probably be a mismatch.
The solution, of course, is to find a new lawyer to represent you. Don’t sign any settlement agreement drafted by your former lawyer until your new lawyer looks it over and OKs it.
You Have the Right To Report Your Attorney to the State Bar Association
Just about any form of legal malpractice is a violation of your attorney’s obligations under the ethics rules of the applicable state bar association. Your former attorney’s bar association can punish them even if their conduct did not amount to a violation of the law. The punishment can range from a reprimand (basically a scolding) to permanent disbarment.
One approach is to negotiate a settlement with your former lawyer and let them know that you are considering filing a complaint with the bar association. This can enhance your bargaining power if you play your cards right. Don’t try this unless you have an informed, good-faith belief that your complaint to the bar association is valid.
You Have the Right To File a Criminal Complaint Against Your Attorney (If Applicable)
If your attorney’s malpractice amounted to a crime, you can file a criminal complaint against them. Let’s say you have given your attorney money to hire an expert witness. If your attorney bought a flight to Jamaica instead, you might have a valid criminal complaint.
To win a conviction, the prosecutor must prove their case “beyond a reasonable doubt.” It’s more likely, however, that your lawyer will get a plea bargain from the prosecutor.
Contact a Personal Injury Lawyer for Help Today
Legal malpractice claims can be difficult to win. It can also be difficult to find an attorney to agree to represent you against a fellow attorney. This is the reason you need to start your attorney search early, long before the statute of limitations deadline is looming.
Schedule a free initial consultation as soon as you can. Contact an experienced attorney from Runion Personal Injury Lawyers by calling (602) 595-5559 for a free consultation. When you schedule your appointment, mention that you want to file a legal malpractice claim so you can weed out attorneys who don’t take such claims.